IN THE CASE OF: BOARD DATE: 27 July 2020 DOCKET NUMBER: AR20190013553 APPLICANT REQUESTS: in effect an upgrade of his characterization of service from under other than honorable conditions to general or honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he was a young man who made a terrible rash mistake that continues to follow him and he would like to put it behind him and move forward with his life. 3. The applicant completed honorable active Army National Guard service from 23 October 1978 to 3 March 1979, a period of 4 months and 11 days. 4. On 22 January 1980, the applicant enlisted in the Regular Army (RA) for a period of 4 years. He held military occupational specialty (MOS) 62F (Lift and Load Equipment Operator). On 29 January 1980, he was assigned to Fort Hood, TX with duties in his MOS. The highest rank he held was private E-2. 5. A Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ), shows on 19 June 1980, he accepted nonjudicial punishment under for disobeying two lawful orders given by a lieutenant to open the door and to “go to stack 6,” on 7 June 1980. His punishment consisted of a forfeiture of pay and 30 days in the Correctional Custody Facility (15 days suspended for 120 days). He appealed the punishment, and his appeal was denied. It was concluded that the proceedings were conducted in accordance with law and regulations and the punishment was not unjust or disproportionate to the offense committed. On 12 July 1980, he was confined by military authorities at Fort Hood. 6. Special Court-Martial Order 48 shows, on 15 August 1980, the applicant was convicted of assault and communicating a threat on 12 July 1980. He was sentenced to confinement at hard labor for 3 months, a forfeiture of $200 pay for 4 months, and reduction to private E-1. This punishment was approved on 10 September 1980. 7. On 30 August 1980, he was assigned to the U.S. Army Retraining Brigade, Fort Riley, KS, in a trainee status. 8. A Record of Proceedings Under Article 15, UCMJ show he accepted NJP in October 1980 for being absent without leave (AWOL) from his unit at Fort Riley from 15 to 19 September 1980. His punishment consisted of a forfeiture of pay, restriction, and extra duty. He did not appeal the punishment. 9. The applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of misconduct. 10. The applicant acknowledged receipt of the commander's intent to separate him for misconduct. He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive, and the rights available to him. He waived consideration of his case by a separation board, waived personal appearance before a separation board, and elected not to submit a statement on his own behalf. He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. He acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws. 11. The applicant waived a medical examination in conjunction with his separation action. 12. The applicant's immediate commander recommended the applicant’s separation in accordance with chapter 14, Army Regulation 635-200, due to misconduct frequent incidents of a discreditable nature. The bases cited for the recommendation were the court-martial action, two NJPs, and that he had been sent to the retraining brigade to help him improve and return to duty. However, his actions since arrival precluded accomplishment of the objective. It was the commander's opinion that he possessed the mental and physical ability necessary to be an effective Soldier, but his present record and failure to react constructively were indicative that he should not be retained in the service. He received considerable counseling and he had not responded favorably. He did not meet the criteria for further rehabilitation attempts. 13. His intermediate commander recommended approval and that further rehabilitation requirements be waived. 14. On 30 October 1980, the separation authority approved the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200, by reason of frequent involvement in incidents of a discreditable nature with civil or military authorities with an Under Other Than Honorable Conditions Discharge Certificate. 15. On 31 October 1980, the applicant was discharged accordingly. His DD Form 214 shows he completed 7 months and 21 days of net active service this period and he completed 4 months and 11 days of total prior active service. No awards are listed on his DD Form 214. 16. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. The separation authority may direct a general discharge if such is merited by the Soldier's overall record. 17. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. (1) The separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (2) Characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190013553 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190013553 5 ABCMR Record of Proceedings (cont) AR20190013553 4